Tuesday, December 24, 2013

Activist Judges Say Scalia Right on 'Gay Marriage'

Gay Agenda judges across America are rapidly falling in line to forbid American voters the right to define marriage as between one man and one woman. Supreme Court Justice Antonin Scalia, a devout Roman Catholic, has warned for more than a decade that judicial activism in the high court decisions were pointing toward an eventual stripping of moral values from the fabric that created America.

[Justice Antonin Scalia's] prediction came true on Friday, when U.S. District Judge Robert Shelby ruled that Utah's 2004 ban on gay marriage was unconstitutional. And Shelby even made note of Scalia's dissent at points in his ruling, citing it as part of his reasoning in striking down the Utah law.

Scalia warned that the Supreme Court's reasoning that struck down [one portion of] the Defense of Marriage Act — which denied federal benefits to same-sex couples — could be used to strike down state laws banning same-sex marriage. Scalia, who's notoriously anti-gay marriage, was saying this was a bad thing. In an interesting twist, Utah's Judge Shelby quoted Scalia's negative prophecy in his pro-gay marriage opinion [and] then wrote that he "agreed" with that part of Scalia's opinion, and offered his response. Though Scalia meant it as some kind of dire warning, Shelby cited the Supreme Court's decision as a reason to overturn Utah's law:

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

The scenarios must have sounded all too familiar to U.S. Supreme Court Justice Antonin Scalia. In June, when the court issued a landmark decision ordering the federal government to recognize same-sex marriages performed in states where they were legal, Scalia warned of what could come next.

"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," Scalia wrote in a scathing dissent in United States vs. Windsor, which struck down part of the federal Defense of Marriage Act but left state laws intact. "No one should be fooled; it is just a matter of listening and waiting for the other shoe" to drop.

Now, for opponents of same-sex marriage, the other shoe is dropping.

"Now it is just as Justice Scalia predicted," [U.S. District Judge Timothy S.] Black wrote in his Ohio ruling. "The lower courts are applying the Supreme Court's decision, as they must, and the question is presented whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples. ... Under the Constitution of the United States, the answer is no."

[Numerous] judges have overridden legislators and voters who had approved the bans before national popular opinion began to tilt in favor of same-sex marriage.

The same-sex weddings began in a joyful chaos on Friday afternoon after Judge Shelby declared that the ban that Utah voters approved in 2004 violated the United States Constitution. While many gay-rights advocates expected a favorable ruling from Judge Shelby, an appointee of President Obama, the timing caught many gay couples off-guard. . . .

Gov. Gary R. Herbert, a Republican, said the flurry of new marriages and unresolved legal questions — lawyers on both sides said the case was likely to reach the United States Supreme Court — had created “a lot of chaos” in Utah. He condemned the ruling as an activist judge’s attack on a definition of traditional marriage that was supported by a wide majority of Utah residents.

. . . A spokeswoman for Ohio’s attorney general, Mike DeWine, said he would appeal the [Ohio] ruling to the United States Court of Appeals for the Sixth Circuit.

The Ohio decision did not go as far as the ruling in Utah, but experts said both were among federal cases around the country likely to return the issue of same-sex marriage to the Supreme Court.

. . . The Mormon Church, once a leader of the anti-marriage-equality fight and a major force in Utah, was practically apologetic in its disagreement with the decision. “The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect,” the Church statement said. “This ruling by a district court will work its way through the judicial process.” A few dead-enders in Utah have fought back, and there is no guarantee that the decision will survive on appeal, but the muted response suggests that everyone, on all sides of the issue, sees where the country is headed.

Dominoes are falling all over. The day before Utah became the eighteenth state (in addition to the District of Columbia) to allow same-sex marriage, New Mexico became No. 17. The New Mexico Supreme Court ruled unanimously that its state constitution required marriage equality.

. . . The Ohio [Judge Black] decision is crucial because people in the United States tend to move from state to state. . . . It would be a disorderly mess to have separate spheres of law [from state to state] for gay married couples and straight married couples . . .

What [Utah's Judge] Shelby and all these judges are seeing is that it is impossible to offer gay people some rights and not others. . . .

“The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond,” wrote [Judge Shelby].

“This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference,” he declared. “And, as discussed above, this right is enjoyed by all individuals. If the right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite-sex marriage. Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.”

“The Plaintiffs are seeking access to an existing right, not the declaration of a new right,” said the judge.

The judge argued that the Fifth Amendment, ratified in 1791, and the Fourteenth Amendment, ratified in 1868, are the two provisions of the Constitution that have guaranteed the “existing right” of a man to marry another man or a woman to marry another woman.

In a broadly written ruling Monday, Judge Timothy Black said Ohio's ["Gay Marriage"] ban is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don't like homosexuality.

Bridget Coontz, the attorney who argued on behalf of the state, said Wednesday in Black's Cincinnati courtroom that in the Supreme Court's historic June decision, the justices also found that states have the right to decide for themselves whether to recognize gay marriage, and Ohio voters decided not to in 2004.

"Ohio doesn't want Delaware or Maryland to define who is married under Ohio law," she said. "To allow that to happen would allow one state to set the marriage policy for all others."

Black said constitutional rights trump Ohio's gay marriage ban, questioning whether it was passed for a legitimate state interest "other than simply maintaining a 'traditional' definition of marriage."

It is not surprising that judges might want to quote a conservative justice when striking down what voters have put in place. Ohio and Utah voters amended their state constitutions to ban same-sex marriages in 2004, along with other states. Black and Shelby were nominated by President Obama.

Shelby, 43, does not have the reputation as a firebrand. He had been on the bench only six months when he was assigned the same-sex marriage case Kitchen v. Herbert. He was previously a Salt Lake City lawyer and was honored for his service in Operation Desert Storm while in the Utah National Guard.

The state of Utah has said it will ask the Supreme Court to stay Shelby’s ruling and stop same-sex marriages while an appeals court considers the merits of the decision. . . .